Complainant

Respondent

Anonymised Parties

A Retained Firefighter

A County Council

Representatives

SIPTU

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00025437-001

31/01/2019

The Worker is employed is employed by the Employer as a Retained Firefighter.

His claim is that his employer, a County Council Retained Fire & Rescue Service, has consistently not afforded him the same opportunities to undertake progression to Driver duties, as afforded to colleagues within the 'Service’, with similar work history/profiles.   He submits that his manager has blocked this progression and prevented him from gaining experience driving larger appliances. In addition, he submits that he has been prevented and blocked from attending relevant training courses.   This was the subject of a formal grievance which he submitted to HR in August 2017.     A response was received but the matter was not resolved.  

The Worker is seeking compensation for loss of earnings due to his failure to progress to a higher post which he submits he was unable to do due to his lack of experience in driving the larger appliances which he attributes to being blocked by his manager.  He also seeks loss of earnings for a time period during which he was out sick due to work related stress and missed a number of call outs and the ensuing payments, again he attributes the reason for this sick leave to the treatment he was being subjected to by his manager.

A hearing of the dispute took place on 12th of July 2017 and following that hearing submissions were received indicating that outstanding matters had been resolved locally but that the parties had failed to reach agreement on the issue of compensation.  

The complainant submits that

His employer, a County Council Fire & Rescue Service, has consistently not afforded him the same opportunities to undertake progression to Driver duties, as afforded to colleagues within the 'Service, with similar work history/profiles.   He has also been prevented and blocked from attending relevant training courses and obstructed whenever he sought to pursue such training. From 21-Oct-2018 he has been trying to get passed to drive the larger appliance's but was consistently blocked and obstructed from doing so.

These matters are now resolved to the worker and the employer satisfaction, going forward. However, the complainant missed out on all relevant call outs during a period of sick leave due to work related stress and should be compensated for loss of earnings during this period. The complainant has also requested that he must be compensated for the loss of earnings he should have received had he been appointed to the higher post 15 years ago. The complainant provided details of the call outs and the loss of earnings endured for this period and is requesting that he complainant be reimbursed for this loss of earnings.

The complainant is also requesting compensation from the employer for the manner in which he was treated down through the years and has requested the Adjudication Officer to award this compensation on top of the loss of earnings.

The respondent submits that

The substantive matters referred to in the complainant’s claim have now been addressed to his satisfaction and the complainant has been appointed to a position as Acting Driver/Mechanic by virtue of his placing on a panel following competitive interviews held in 2017.

all outstanding matters were dealt with locally with the exception of the compensation.  

the complainant has requested that he be compensated for the loss of earnings he should have received had he been appointed to the higher post 15 years ago. The respondent submits that the complainant is not entitled to compensation in this regard and that there is no guarantee that the complainant would have been successful in securing the higher post had he applied for same.    The respondent also states that the complainant is not entitled to compensation in respect of a loss of earnings during a period of sick leave due to work related stress for which he has already been paid his annual retainer.

The respondent submits that it was not until August 2017 that the complainant confirmed to the Human Resources Department that he wished to lodge a formal grievance and was advised that same would be referred to Management for consideration and response.  A comprehensive response as prepared by Senior Assistant Chief Fire Officer was issued to the complainant in October 2017.    The respondent submits that the complainant has not until recently made clear the exact nature of matters in dispute which would have allowed for proper adherence to policies which are in place with the expressed purpose of assisting employees who feel aggrieved at their treatment in the workplace.   In the absence of an employee themselves engaging under the provisions of the employer’s policies, the respondent is limited in what action can be taken to address possible issues which have not been formally raised.

In addition, the respondent does not accept that the complainant can be compensated for his own failure to pursue complaints. LCR20547 refers to a claim regarding reduction in overtime in October 2009 was not made until May 2012 (an intervening period being of 30 months) with the Court stating “… the Court is satisfied that while the matter was raised in 2009 a claim for compensation was not made until May 2012. In these circumstances the Court does not recommend concession of the claim in so far as it relates to the reduction in 2009.”

The commission has been advised post hearing that the substantive matters referred to in the complainant’s claim have now been addressed to his satisfaction and the complainant has been appointed to a position as Acting Driver/Mechanic by virtue of his placing on a panel following competitive interviews held in 2017.

In relation to the issue of compensation, the Council has engaged with the complainant’s Union in relation to same, but these negotiations were unsuccessful.

The complainant has requested that he must be compensated for the loss of earnings he should have received had he been appointed to the higher post of Driver/Mechanic 15 years ago. The respondent does not agree that compensation arises in relation to a presumed appointment as Driver/Mechanic prior to his recent Acting appointment.

The respondent states that limited vacancies which arose for that position with the relevant Fire Brigade within the timeframe suggested by the Union were filled in accordance with established and accepted procedures, and at no point was any objection raised by either the claimant or his Union.    The respondent added that had there been no issues in relation to the complainants driving approval or otherwise, there is no guarantee that the complainant having applied for those positions would have been successful in securing same.

In addition, the respondent adds that having regard to the fact that only the established number of positions for each Brigade can be carried at any given time, and that such vacancies arising were filled in accordance with established procedures, the respondent cannot agree to payment of compensation for a hypothetical situation where no actual loss of earnings can be established.

The complainant has also claimed for loss of earnings while on sick leave due to work related stress and has provided details of call outs which he was unable to attend during this period the respondent submits that its sick leave scheme provides for payment to persons unavailable for work due to medically certified illness and resultant absence from employment.  The respondent adds that the scheme, in the normal manner, provided for payment of Annual Retainer to the complainant during the period of absence.  The respondent also submits that it cannot make payment of compensation for losses of earnings due to absence on sick leave as this is not within the provisions of their policy or those of nationally accepted practice.

The complainant has also claimed for Loss of Earnings due to alleged unfair treatment. The respondent in this regard states that it is a matter of fact that the complainant’s submission of a formal grievance on August 2017 was the first time that the claimant utilised the various policies available to him in relation to possible workplace issues.    

The respondent states that it does not accept that the complainant can be compensated for his own failure to pursue complaints.  LCR20547 refers to a claim regarding reduction in overtime in October 2009 was not made until May 2012 (an intervening period being of 30 months) with the Court stating “… the Court is satisfied that while the matter was raised in 2009 a claim for compensation was not made until May 2012.     In these circumstances the Court does not recommend concession of the claim in so far as it relates to the reduction in 2009.”

The complainant advised the hearing that he had on a number of previous occasions raised issues with HR in respect of his failure to be placed on or to be allowed to attend relevant training courses and his failure to be permitted to drive certain vehicles as well as other HR issues in respect of difficulties he was experiencing in his workplace but he stated that nothing was done and no response was received. The complainant did acknowledge that he only submitted a formal grievance in August 2017 but stated that even after submitting that grievance he received a reply in October 2017 which did not address or resolve the issues raised and even though he sent a number of emails after that to various members of personnel he received no response.

Witness for the respondent Mr. S at the hearing acknowledged that the fire station in question had been operating in difficult circumstances for the last few years but he stated that this was no longer the case.   Witness for the respondent Mr. S also acknowledged and agreed that there had in the past been a certain lack of reply or failure to provide adequate responses to the issues raised by the complainant.     Mr. S added that the respondent is currently in a period of time where change and co operation can take place.    

Having regard to the foregoing, I find some merit in the worker’s claim and I note that both parties agree that there was a lack of adequate response to issues raised by the complainant, it is also clear from the evidence adduced that the complainant was forced to ‘jump through hoops’ when he tried to obtain the necessary training and experience to further his career.   Having said this I note that the complainant did not lodge a formal grievance until August 2017 at which point the respondent did engage with him to try and find a resolution but to no avail.   Having considered all of the circumstances of this case I recommend in favour of the complainant and I consider an award of compensation in the amount of €5,000 to be appropriate in all of the circumstances of this case.

Having considered all of the circumstances of this case I recommend in favour of the complainant and I consider an award of compensation of €5,000 to be appropriate in all of the circumstances of this case.